Citation Nr: 0824485
Decision Date: 07/22/08 Archive Date: 07/30/08
DOCKET NO. 06-20 980 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the
Republic of the Philippines
THE ISSUE
Whether new and material evidence has been presented to
reopen the claim of service connection for chronic
obstructive pulmonary disease.
ATTORNEY FOR THE BOARD
Motrya Mac, Associate Counsel
INTRODUCTION
The veteran, who is the appellant, had recognized guerilla
service from May 1942 to November 1945.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of rating decision, dated in October 2005, of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Manila, Philippines.
FINDINGS OF FACT
1. In a decision, dated in December 1998, the Board denied
service connection for chronic obstructive pulmonary disease.
2. The additional evidence presented since the decision by
the Board in December 1998 is either redundant or cumulative
of evidence previously considered.
CONCLUSIONS OF LAW
1. The decision of the Board in December 1998, denying
service connection for chronic obstructive pulmonary disease,
is final. 38 U.S.C.A. § 7104 (West 2002).
2. New and material evidence has not been presented to reopen
the claim of service connection for chronic obstructive
pulmonary disease. 38 U.S.C.A. §§ 5108, 7104(b) (West 2002);
38 C.F.R. § 3.156 (2007).
The Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A
(West 2002 & Supp. 2008), and implemented in part at
38 C.F.R. § 3.159 (2007), amended VA's duties to notify and
to assist a claimant in developing information and evidence
necessary to substantiate the claim.
Duty to Notify
Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of
the information and evidence not of record that is necessary
to substantiate the claim, which information and evidence VA
will obtain, and which information and evidence the claimant
is expected to provide.
In a new and material evidence claim, the VCAA notice must
include the evidence and information that is necessary to
reopen the claim and the evidence and information that is
necessary to establish the underlying claim for the benefit
sought. Kent v. Nicholson, 20 Vet. App. 1 (2006).
Also, the VCAA notice requirements apply to all five elements
of a service connection claim. The five elements are: (1)
veteran status; (2) existence of a disability; (3) a
connection between the veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
The VCAA notice must be provided to a claimant before the
initial unfavorable adjudication by the RO.
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
The RO provided pre- and post- adjudication VCAA notice by
letters, dated in May 2005 and in March 2006. The notice
included the type of evidence to reopen the claim of service
connection for chronic obstructive pulmonary disease, that
is, evidence not previously considered, which was not
redundant or cumulative of evidence previously considered,
and that pertained to the reason the claim was
previously denied, that is, the lack of evidence that chronic
obstructive pulmonary disease was related to an injury or
disease of service origin. The notice also included the type
of evidence needed to substantiate the underlying claim,
namely, evidence of current disability; evidence of an injury
or disease in service or an event in service, causing injury
or disease; and evidence of a relationship between the
current disability and the injury, disease, or event in
service. The veteran was notified that VA would obtain
service records, VA records, and records of other Federal
agencies, or that he could submit private medical records or
authorize VA to obtain private medical records on his behalf.
As for content of the VCAA notice, the documents
substantially complied with the specificity requirements of
Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying
evidence to substantiate a claim and the relative duties of
VA and the claimant to obtain evidence); of Charles v.
Principi, 16 Vet. App. 370 (2002) (identifying the document
that satisfies VCAA notice); of Kent v. Nicholson, 20 Vet.
App. 1 (2006) (new and material evidence necessary to reopen
a service connection claim element of new and material
evidence); and of Dingess v. Nicholson, 19 Vet. App. 473
(notice of the elements of the claim).
To the extent that the VCAA notice, pertaining to the
effective date of the claim and to the degree of disability
assignable, was provided after the initial adjudication, the
timing of the VCAA notice did not comply with the requirement
that the notice must precede the adjudication. The timing
error was cured by substantial content-complying VCAA notice
and subsequent readjudication as evidenced by the statement
of the case, dated in April 2006. Mayfield v. Nicholson, 499
F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate
VCAA notice and subsequent readjudication without resorting
to prejudicial error analysis.).
Duty to Assist
Under the duty to assist, a VA medical examination or medical
opinion is not authorized unless new and material evidence is
presented. 38 C.F.R. § 3.159(c)(4)(iii), and that is not the
case here.
As the veteran has not identified any additional evidence
pertinent to the claim and as there are no additional records
to obtain, the Board concludes that no further assistance to
the veteran in developing the facts pertinent to the claim is
required to comply with the duty to assist.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
New and Material Evidence Claim
In a decision in December 1998, the Board denied service
connection for chronic obstructive pulmonary disease. The
evidence at the time of the Board decision in December 1998
is summarized as follows.
Service medical records show that in November 1945 the
veteran denied any wounds or illness incurred from December
8, 1941, to the date he returned to military control.
In support of his claim, the veteran submitted statements in
May 1996 and in September 1996 and testified in May 1998 that
while he was not treated for a respiratory condition during
service he received medical treatment soon after service. He
stated he was unable to obtain medical records documenting
his earliest treatment in the Philippines. He argued that
during combat he was exposed to the weather and that wet
clothing caused his respiratory condition.
In September 1996, the veteran's spouse stated that the
veteran had experienced a chronic disease manifested by
respiratory symptoms since they were married in 1952. In a
statement in September 1996, B.D., who was identified as a
former landlord, attested that the veteran had trouble with a
runny nose, a cough and wheezing, especially at night during
the period from 1946 to 1948.
Private treatment records show that from August 1978 to
February 1979 that the veteran was treated for lung problems.
In August 1978, the veteran stated that he was treated for a
lung disorder in 1952 and again in 1965 or 1968. In March
1996, a private physician stated that the veteran had been
treated for five years for chronic obstructive pulmonary
disease.
Application to Reopen
Although a decision by the Board is final, it may
nevertheless be reopened if new and material evidence is
presented. 38 U.S.C.A. § 5108.
As the veteran's current application to reopen the claim was
received in April 2005 the regulatory definition of "new and
material evidence" currently in effect applies.
New evidence means existing evidence not previously submitted
to agency decision makers. Material evidence means existing
evidence that, by itself or when considered with previous
evidence of record, relates to an unestablished fact
necessary to substantiate the claim. New and material
evidence can be neither cumulative nor redundant of the
evidence of record at the time of the last prior final denial
of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim. 38
C.F.R. § 3.156(a).
For the purpose of establishing whether new and material
evidence has been submitted, the credibility of the evidence,
although not its weight, is to be presumed. Justus v.
Principi, 3 Vet. App. 510, 513 (1992).
Additional Evidence
The additional pertinent evidence consists of the following
exhibits:
Exhibit (1) consists of copies of the service medical
records, private medical records, dated in 1978 and 1979 and
in 1997, statements of the veteran and other lay statements,
which were previously considered by the Board in December
1998.
This evidence is not new and material because it is
redundant, that is, it is repetitive of evidence previously
considered. And redundant evidence does not meet the
regulatory definition of new and material evidence under 38
C.F.R. § 3.156.
Exhibit (2) is a letter, dated in June 2001, from J.C.T., who
informed the veteran that his medical records from a county
clinic were no longer available and that his best recourse
would be to show chest x-rays from the sixties to the
present. This evidence is cumulative, that is, supporting
evidence of previously considered evidence, namely, treatment
for a lung problem after service, which has been previously
considered and rejected by the Board in its decision in
December 1998. And cumulative evidence does not meet the
regulatory definition of new and material evidence under 38
C.F.R. § 3.156.
Exhibit (3) is a copy of the veteran's Form 9 Appeal of June
1997 and other documents that were of record in December
1998. This evidence is not new and material because it is
redundant, that is, it is repetitive of evidence previously
considered. And redundant evidence does not meet the
regulatory definition of new and material evidence under 38
C.F.R. § 3.156.
Exhibit (4) consists of private medical records, dated from
2002 to 2005, and VA records, dated in 2004 and in 2005,
documenting chronic obstructive pulmonary disease. This
evidence is cumulative, that is, supporting evidence of
previously considered evidence, namely, evidence of chronic
obstructive pulmonary disease after service. And cumulative
evidence does not meet the regulatory definition of new and
material evidence under 38 C.F.R. § 3.156.
Exhibit (5) is a private pulmonary consultation dated in July
2003 showing a history of tuberculosis in 1952, of a
diagnosis of asthma of 15 years', and of chronic obstructive
pulmonary disease since 1998. This evidence is cumulative,
that is, supporting evidence of previously considered
evidence, namely, treatment for a lung problem after service,
which has been previously considered and rejected by the
Board in its decision in December 1998. And cumulative
evidence does not meet the regulatory definition of new and
material evidence under 38 C.F.R. § 3.156.
To the extent the veteran's statements are offered as
evidence of a nexus between chronic obstructive pulmonary
disease and service, where, as here, there is a question of
medical causation, not capable of lay observation, competent
medical evidence is required to substantiate the claim.
Competent medical evidence means evidence provided by a
person who is qualified through education, training, or
experience to offer a medical diagnosis or opinion.
38 C.F.R. § 3.159. As a lay person, the veteran is not
qualified through education, training, and expertise to offer
a medical diagnosis or an opinion on medical causation.
For these reasons, the Board rejects the veteran's statements
as competent evidence to reopen the claim. Jandreau v.
Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
As the additional evidence is not new and material, the claim
of service connection for chronic obstructive pulmonary
disease is not reopened. As the claim is not reopened, the
benefit-of-the-doubt standard of proof does not apply.
Annoni v. Brown, 5 Vet. App. 463, 467 (1993).
ORDER
As new and material evidence has not been presented, the
claim of service connection for chronic obstructive pulmonary
disease is not reopened, and the appeal is denied.
____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs